A “non-constitutional” take on the Canada Summer Jobs Program (by guest blogger Kathryn Chan)

The Trudeau government’s administration of the Canada Summer Jobs Program has attracted a great deal of criticism in recent weeks.  Controversy swirls around the “detestable attestation”, which requires groups that apply for program funding to attest that both the job [for which they plan to use the funding] and the group’s core mandate respect individual human rights in Canada.  The attestation specifies that these rights include “the values underlying the Canadian Charter of Rights and Freedoms” as well as reproductive rights and the right to be free from discrimination.

Underlying the poor drafting and poor communications, the issue is whether the Trudeau government either can or should require program applicants to sign an attestation that may conflict with their religious views. Commentators have expressed very strong opinions on the issue, with the weight of the legal commentary pivoting upon divergent views of the scope of the Charter’s equality and religious freedom provisions. Constitutional law principles are likely to be determinative of the question of whether the government can make signing the attestation a condition of its summer job funding. However, I suggest that as we consider whether government should use the attestation in this way, we also have regard to “non-constitutional” legal principles and debates.  In particular, I suggest we might gain a deeper understanding of the contest over the Canada Summer Jobs Program by considering the law’s approach to regulating charities, and the manner in which it navigates the tension between the respective spheres of individual project pursuit and collective project pursuit.

The majority of the organizations that object to the attestation are religious charities.  By virtue of the legal criteria of charitable status, we may assume that they are non-profit organizations constituted to advance the tenets of a religious faith, either directly (by spiritual teaching), or indirectly (by assisting the needy in accordance with their religious beliefs).   They must also operate “for the public benefit” within the meaning of the common law.  Provided that religious organizations meet these criteria, the common law has long held that they are entitled to the advantages of charitable status: perpetual duration, the protection of the Crown, and (since the early 20th century) a variety of tax benefits.  Religious and other charities are also subject to special burdens, including stringent duties with respect to the administration of charity property, and regulatory and reporting duties under the federal Income Tax Act.

The common law has always pursued two contradictory goals in defining and supervising the entities that are entitled to this special treatment.  The first is to enable benevolent property owners to improve the world in accordance with their own individual vision.  This goal – of protecting conditions of individual autonomy for the founders and administrators of charitable projects – is strongly associated with the private law sphere.  As Nigel Simmonds has explained, it expresses the deep value that liberal democracies place upon individual project pursuit – “the freedom of the individual to formulate and execute his or her own plans and projects without regard to the value or disvalue placed upon the content of those plans and projects by others”.

The common law’s second goal with respect to charities is in tension with the first – it is to set limits on the autonomy of those who found and administer charitable projects in order to ensure conformity with a more collective ideal of the good.  This is a goal strongly associated with the public law sphere. It expresses (again in Simmonds’ terms) the deep value that liberal democracies place upon collective project pursuit – “our collective freedom and responsibility to determine, through appropriate mechanisms, the broad structural features of our own society.”

One way that liberal democracies deal with their simultaneous valuation of individual and collective project pursuit is to delineate spaces where each of these forms of project pursuit dominates. For example, a person’s navigation of an intimate relationship is understood to be an individual project, where the law’s priority is generally that individuals be able to author their own life.  A government’s decision to impose a tax for the national defence, by contrast, is understood to be a collective project, which must be governed according to “public law values” such as fairness, equality and rationality.

The difficulty is that many projects sit somewhere along the expansive spectrum between the opposing poles of individual and collective project pursuit, making it difficult to determine whether autonomy or “public law values” should prevail.   Charitable projects, I have argued elsewhere, sit right in the middle of this spectrum, where the regulatory impulses of public law and private law bear down on them with comparable force. Religious charitable projects occupy an even more complex position on the spectrum, since their religious freedom is linked both to our collective project of rights protection and to individual and community autonomy.  Charity law has historically balanced the opposing impulses of public and private law with tools such as the definition of charity and the public benefit rule (see also Professor Adam Parachin’s work on these themes). Nevertheless, the equilibrium between these impulses changes over time.  And so a Catholic adoption agency that would, at one time, clearly have been considered an individual project, may come to be treated as a collective project in a world where government and charitable programs  are intertwined.

There are no easy answers to the question of when the government should stop treating projects as individual projects and start treating them as collective ones.  The question may arise with for-profit projects as well as not-for-profit ones. However, both ancient and recent history suggest that charities are particularly vulnerable to being ‘co-opted’ by government through funding or other mechanisms that nudge charities towards alignment with the government’s substantive goals. We should be wary of such alignment, I have argued elsewhere, religious freedom or not. First, such alignment or co-optation may threaten the voluntary spirit that typically characterizes charitable activity and has historically been understood to be its greatest strength.  Second, even where the alignment appears benign or well-intended, it risks becoming part of a broader pattern of the governmental stifling of dissent.  Finally, charities that cannot accept being aligned with the government’s agenda are likely to withdraw from their relationships with government, distancing themselves from the regulatory oversight that is designed to protect the public.

The debate over the Canada Summer Jobs grant program is unlikely to be easily resolved, and is almost certain to rear its head in other factual contexts.  Constitutional law principles may ultimately determine whether government can require applicants for funding programs to align with government policies in the manner of the attestation.  However, as government ponders how it should manage its relationship with religious organizations, it should also consider the centuries-old law of charities, and the principles it developed to regulate projects that were neither purely “individual” nor “collective”.

 

Chan on the Summer Jobs Programme

Announcing a guest post on the “attestation” applicants to the federal government’s Summer Jobs Programme must provide

This is just a note to announce a forthcoming guest post by Kathryn Chan on the “attestation” that the federal government requires any would-be recipient of funding under its Summer Jobs Programme to provide. As explained in my own recent post about it, businesses and non-profits that wish to apply for funding to support their hiring of young Canadians for summer jobs need to tell the government that their “core mandate” is consistent with a raft of Charter and “other” rights, as well as Charter values. I was sharply critical of this requirement in my post. Prof. Chan, who teaches and writes about public law and charity law at the University of Victoria, brings her own perspective on this issue, which I think will add something valuable to the debate. I am looking forward to her post.

Canadian Events in January

Announcing talks in Montreal and Toronto

This is just a quick announcement that I will be giving a couple of talks in Canada next month. Leaving the long and sunny days of New Zealand’s summer ― and this year, unlike last, at appears that we are having an actual summer ― for the Canadian winter is a dubious pleasure, but it’s for a good cause.

The first one will be on January 10, at McGill, I’ll be speaking about ― and against ― the “Statement of Principles” undertaking to promote equality, diversity, and inclusion that Ontario lawyers are now required to create. I have written a good deal about the “Statement of Principles” on this blog and elsewhere (explaining the reach and lawlessness of the requirement and, more specifically, its illegality; denouncing its violation of the freedom of conscience; and criticizing the vision of the legal profession behind it). I am looking forward to making my case to students and anyone else who might care to hear me. I am grateful to Runnymede McGill for giving me the chance. The talk will be at 17:30 at NCDH at 201.

The second event in which I will take part will be Runnymede Society’s Law and Freedom Conference at the University of Toronto’s Hart House, on January 12-13. I will be speaking on the 13, presenting a paper on “The Rule of Law All the Way Up”, which will argue that the Canadian constitution, which is supposed, including by its own terms, to be our Supreme Law, is all too often not treated by people both on the left and on the right as law at all, but rather as a set of merely political commitments. Justice Bradley Miller of the Court of Appeal for Ontario will comment, which is a great honour for me (and, truth be told, a source of some apprehension!). Our session is scheduled for 10:30, but there will be plenty of other interesting stuff there ― perhaps especially Justice Peter Lauwers’, also of the Court of Appeal for Ontario, Friday keynote on “The Mischief of Charter Values”, the subject of a much-discussed opinion he co-authored with Justice Miller in Gehl v. Canada (Attorney General), 2017 ONCA 319.

If you are able to make it to one of these events, please say hello! It’s always fun to meet readers in real life.

Stupid but Constitutional

More on why I think legislation forcing floor-crossing legislators to run in by-elections is not unconstitutional

In my last post, I asked whether there is a right to rat—whether member of Canadian legislatures have a right under the Canadian Charter of Rights and Freedoms to cross the floor and join the caucus of a party different from the one for which they were elected, without going through a by-election first. I argued that there is no such right, although the bans on floor-crossing, such as the one that exists, and is now being challenged before the courts, in Manitoba are a bad idea. Somewhat to my surprise, that post provoked a good deal of discussion on Twitter (relative to my other posts, anyway, which to be fair is a pretty low standard). Because of the time difference, the fun mostly happened while I was asleep, and I missed out, so I want to follow up here.

One question that was raised, by Emmett Macfarlane, is whether I sufficiently addressed the floor-crossers’ “freedom”, under section 2(d) of the Charter, to associate with the caucus of their choice (and indeed a party caucus a right to associate with them)”. I’m not sure how much more I can say on this point; there seems to be a fundamental disagreement between prof. Macfarlane and me here. As I see it, no one is prevented from associating with a caucus, nor is a caucus prevented from associating with anyone. Only a preliminary condition is imposed: that before undertaking a (formal) association, the floor-crosser be elected under that caucus’s party label. The floor-crosser is put in the same position as any other citizen—one cannot become a member of a caucus, even if both sides are agreed, unless one first gets elected. (Consider the case of an unsuccessful candidate: he or she would very much like to be part of the caucus, and the caucus would love to have him or her, but those dastardly voters get in the way. ) Similarly, even if  engaging in collective bargaining is a constitutional right, as the Supreme Court now claims it is, I don’t think that even the Supreme Court would say that the requirement that the union have the support of a majority of workers before it is able to impose itself on their employer is a violation of the freedom of association, although it is doubtless a pre-condition that gets int the way of people engaging in associational activities.

Second, prof. Macfarlane remains of the view that the floor-crossers’ constituents rights to effective representation under that courts have read into section 3 of the Charter are infringed when their representatives are “restricted from representing [them] by responding to political circumstances that leads them to believe joining another caucus is the best way to do that”. I do not think that the right to effective representation has ever been taken to go nearly as far as prof. Macfarlane wants to take it here. In a passage from Haig v. Canada, [1993] 2 SCR 995 later endorsed by the majority in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, Justice L’Heureux-Dubé spoke of a

right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate. (1031; underlining in Figueroa at [25])

In other words, the right protected by section 3, both as a matter of constitutional text and even in the Supreme Court’s cases that have arguably expanded it to some extent, concerns the process of elections. As the majority put in Figueroa, it is “the right of each citizen to a certain level of participation in the electoral process”. [26] Section 3 does not deal with what happens within the legislature once the elections have taken place.

If the courts were to expand the scope of section 3 in this way, they would become entangled in all manner of questions that have always been thought of as a matter of politics—for example, whether the whip or a party line gets in the way of “effective representation”. (And I don’t think that parliamentary privilege, of which more shortly, will save them. Privilege attaches to the functioning of legislative bodies, not political parties or even caucuses.) Jan Jakob Bornheim pointed out to me that that’s precisely what happens in Germany, where the Basic Law‘s provision making members of the Bundestag “responsible only to their conscience” (article 38) has been interpreted to prohibit the imposition of party lines. For my part, I don’t think it’s a good idea to involve the courts in these issues, and I doubt that Canadian courts are all that keen to take on this responsibility, in the absence of a reasonably clear textual requirement that they do so.

In addition to all of that, I think that we should take seriously the role that party affiliation plays in people’s voting behaviour, and acknowledge that many, and probably most, voters will feel that their representation is undermined, not enhanced, by the ability of a representative whom they chose (in large part, if not exclusively) because he or she was the candidate of one party to switch, mid-term, to a different party. Prof. Macfarlane suggests that this amounts to “using a reality of voting behaviour to transform the core purpose and function of” a legislator “which isn’t to represent a particularly party to but to represent a constituency”. For my part, I wouldn’t want a constitutional doctrine that is oblivious to “realities of voting behaviour” in the name of some high-minded pursuit of politics as it ought to be rather than as it is. In any case, I don’t think the distinction between the roles of representative of a party and representative of a constituency are as sharply distinct as prof. Macfarlane suggests. A legislator elected under a partisan banner can, and indeed is expected to, represent a constituency as a partisan (not in every way, of course, but in much of what he or she does),  and really don’t see how the Charter gets in the way of that, or why it should.

The final question I will address here is whether any of this matters, or whether the whole thing is a matter Parliamentary privilege anyway,  and the courts will not interfere with the way in which privilege is exercised. On this point, I think there is some confusion going on. The internal functioning of legislative bodies is a matter of privilege, as are the rules they make, internally and for themselves, such as their standing orders. That, as Benjamin Oliphant noted, the standing orders of Canadian legislatures deny independent members some important rights that they grant to those belonging to political parties (and thus arguably undermine their constituents’ right to effective representation) is a matter of privilege and not subject to Charter review. But the issue we are concerned with does not arise out of standing orders or an exercise by the Speaker of the Legislative Assembly of that body’s self-governing powers. It concerns the constitutionality of a statute enacted pursuant to one of the province’s legislative powers (namely that in section 45 of the Constitution Act, 1982, to legislate in relation to the constitution of the province), to be part of the law of the land, and not merely the law and custom of Parliament. The exercise of this legislative power is obviously subject to the Charter; as section 52(1) of the  Constitution Act, 1982 provides, “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

Now, as the Court of Appeal for Ontario explained in Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission), (2001) 54 OR (3d) 595 at [35], although the constitutionality of legislation in relation to the functioning of a legislature or one of its components is subject to the Charter, to the extent that this legislation calls for self-application by the legislature or its Speaker, the courts will not interfere with decisions made pursuant to that legislation. (This principle, known as the right of “exclusive cognizance”, is an aspect of privilege.) So, for instance, in the case of Manitoba’s ban on floor-crossing, it will be for the Speaker (I assume) to enforce the rule that “a member who … [has] cease[d] to belong to the caucus of that party during the term for which he or she was elected … must sit … as an independent and is to be treated as such”, and the courts will not call into question the Speaker’s decisions about what that entails. But the question of the constitutionality of that provision is a prior and separate one, and the right of exclusive cognizance does not apply to that question.

In short, although they are not immune from constitutional scrutiny because of Parliamentary privilege, bans on floor-crossing are not unconstitutional. They infringe neither the freedom of association nor the right to vote (or to effective representation) protected by the Charter. Once more, to say that such bans are constitutional is not to say that these bans are a good policy. I think they are ineffective (because they cannot prevent a would-be floor-crosser from voting with his new friends), and useless, because voters can always get rid of a representative they don’t like at the next election. One might even say that these bans are stupid—stupid but constitutional, as the late Justice Scalia used to say.

A Right to Rat?

A Manitoba MLA claims there is a Charter right to cross the floor. He is wrong.

John Markusoff writes in Maclean’s about a Charter challenge launched by Steven Fletcher, now an independent member of Manitoba’s Legislative Assembly, against section 52.3.1 of the province’s Legislative Assembly Act, which prevents members “elected with the endorsement of a political party” from joining the caucus of a different party during  their term. They must, rather, sit as independents—or resign and get themselves re-elected under their new partisan colours. Mr Fletcher will be “arguing that the ban infringes on his freedoms of expression and association, and … on the voting rights of his constituents”, the latter argument being based on an independent member’s lesser privileges (in relation to things like the ability to ask questions) compared to those of the members of a caucus. Mr. Fletcher has been expelled from the Conservative caucus, and Mr. Markusoff describes him as “an MLA marooned, and much disempowered politically for it”—although Mr. Fletcher apparently insists he has no plans to join another party.

Mr. Markusoff is supportive of Mr. Fletcher’s plight, pointing to the fact that Sir “Winston Churchill … cross[ed] the floor twice during his storied career”. (Churchill’s own take on this was that “anyone can rat, but it takes a certain amount of ingenuity to re-rat”.) Mr. Markusoff also quotes two political scientists who think Mr. Fletcher has a pretty good argument. Emmett Macfarlane is one of them, agreeing that Mr. Fletcher’s “constituents are poorly served”. Meanwhile Mr. Fletcher’s lawyer argues that the ban on floor-crossing—or ratting, or, as it’s called in New Zealand, waka-jumping (a waka is a Māori canoe)—serves to give party leaders more power at the expense of ordinary members. With that, I agree, and I too think that the ban on floor-crossing is a bad idea, as I explained here when commenting on a (never-enacted) proposal to impose a similar ban in Québec. Yet as I also noted in that post, in my view, a ban is not unconstitutional.

Indeed, it seems to me that the ban is not a meaningful restriction on anyone’s rights. For one thing, no one has a right to seat in the Legislative Assembly, or to be part of a caucus, without a mandate from the voters. And for another, the ban on floor-crossing does not prevent members from joining a party other than that for which they were elected, still less from voting as they please or voicing whatever opinions the Legislative Assembly’s standing orders allow them to voice. What it does is require them to do is stand for election to have voters confirm their party switch. If the voters still want to have the member as their representative under his or her new colours, then he or she will go on free as a bird, or at any rate as free as his or her new caucus permits. Otherwise, it’s the voters, not the ban on floor-crossing, that will have silenced the now-former member. And if the point is that the voters will likely value being represented by someone of the same party they previously voted for—well, I don’t think the Charter denies them that preference, least of all in the name of “effective representation”.

A couple of other points are worth considering here. First, if the argument is that it is somehow contrary to the Charter for party leaders to be able to exert pressure, even considerable pressure, on the members of their caucuses, this goes very far indeed. Does the leader’s ability to distribute, and to withdraw front-bench (and, in government, cabinet) roles raise constitutional questions? Or his or her ability to boot a member from caucus quite apart from any ban on floor-crossing, on the premise that there is no guarantee that the expelled member will in fact find a new political home, and may remain “marooned” instead? I doubt that a court would want to go that way, and this is as it should be. Voters are quite capable of delivering their verdict on any such shenanigans—if they care which, for better or for worse, they probably mostly do not.

Second, while floor-crossing might be described as a feature, or even “a time-honoured, Churchillian convention”, as Mr. Markusoff does in fact describe it, in a first-past-the-post universe, where members of legislatures are in principle elected in their personal capacity, it is very much a bug in a system of proportional representation. Because the legitimacy of the distribution of seats in an assembly elected using such a system rests on its relationship to the party vote (whether or not some of assembly’s members are in fact elected to represented particular constituencies), changes in the partisan affiliation of individual MPs undermine it to a greater extent than they do a system that rests on the personal relationships between MPs and their constituents. Of course, Manitoba does not have a proportional electoral system, and it should be possible for a court intent on striking down the ban on floor-crossing to do so in a manner that at least leaves the question open should it (or another Canadian jurisdiction) undertake electoral reform, but one should at least be wary of invoking over-broad principles in this matter.

To repeat, I do not think that rules, such as Manitoba’s, that put a break on the ability of members of legislatures to cross the floor are good idea. Whether the practice is Churchillian or Emersonian in any given case, the voters will be able to pass their judgment at the next election; I do not think that there is a pressing need to rush them to it. And to the extent that it can reduce the power of party leaders, there might be something to be said for floor-crossing—though there is also something to be said against a means for individual legislators of acquiring disproportionate power in a finely balanced assembly. Be that as it may, these are matters of political morality and institutional design. There is no right to rat, and the courts should not create one.

A Respectful Dissent From the Khadr Consensus: Ward Revisited

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, “the restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.” This is doubly true respecting violations of rights and freedoms.

Despite these difficulties, most observers have made near-conclusive and wide-ranging claims about damages in the context of the Khadr case. For example, Prime Minister Justin Trudeau has argued that $10.5M is the invariable cost, in this case, of a Charter of Rights and Freedoms violation. Prof. Audrey Macklin similarly argued that the settlement is justified because the Government of Canada’s actions were “morally reprehensible”; and what’s more, a damages award at trial would have “dwarfed” the settlement figures. Prof Craig Martin simply argues that a restoration of “Canadian values” justifies the Khadr settlement. Other examples abound.

Whether the settlement and its quantum are justified in comparison to a damages award at trial is a fraught question. There are no easy answers provided by the law of constitutional damages. Yet the observers above reason from political premises about the importance of the Charter to Khadr’s “human rights” to wholly justify the settlement, without considering the legal justifications and difficulties associated with awarding Charter damages in this case. Indeed, much of the analysis has not engaged with Ward v Vancouver (City), in which the Supreme Court of Canada discussed the legal considerations directly relevant to Khadr.  In this post, I use the Ward analysis to critique two of the main claims used to support the settlement and its quantum: (1) that a sizeable settlement is appropriate based on the circumstances (2) quantum: that a damages award at trial would have “dwarfed” the settlement figures. Instead, it is just as likely that a damages award may not have reached $10.5M at all.

As we shall see, uncertainty is the watchword. That is what the law, not politics, prescribes–and why I dissent from the orthodoxy on this issue.

*****
I will start with the former claim.  Let’s begin with what is true. The Charter must apply for a damages award to be available. Contrary to Conservative MP Erin O’Toole, the Charter does apply extraterritorially in this case. While there is a complex set of cases on Charter application abroad (see the recent episode of The Docket for a solid analysis), the Supreme Court held in Khadr 2010 that the Charter applied. That is now a decided legal point. The fact that Khadr could be characterized as a jihadist is also irrelevant for the purposes of Charter application—constitutional rights exist to afford protection  to those who the majority may not consider worthy of protection.

But it is not enough for the supporters of the settlement to draw a direct line from a Charter violation to the settlement. In Ward, the Supreme Court held that a complex analysis is required after a Charter breach is found in order to determine whether damages are an “appropriate and just remedy,” as per the text of s.24(1) of the Charter. The Court outlined the functional justifications for a Charter damages remedy which a claimant must trigger in order for damages to be appropriate: the remedy must compensate, deter future unconstitutional government action, or vindicate Charter rights.

It follows that whether a Charter damages remedy qua settlement is “appropriate” writ large is the wrong question. Instead, we must ask what the functional justification for the Khadr settlement is in the context of Ward. The settlement could be justified from different perspectives. This is a question of legal policy.

Compensation and vindication in this case are near-impossible to achieve. Though separate justifications, both vindication and compensation seek to resolve the intangible loss associated with a Charter violation. Millions of dollars will not put Khadr in the position he would have been in but-for the narrow Charter breaches, because his loss (the violation of Charter rights) cannot be measured. It will differ from judge to judge, court to court. It is true in the private law context (see Andrews) that courts routinely award for intangible, non-pecuniary loss.   It is also true that damages in the private law context are primarily justified by the Supreme Court on a compensatory basis: Blackwater v Plint, para 81. Much of this thinking informed the reasoning in Ward, where the Court held that the difficulty of measuring a harm should not be a bar to the availability of constitutional damages.  But both private and public law recognize the limitations of compensation for immeasurables by controlling for mass recovery in such circumstances.  For example, Andrews introduced a cap for non-pecuniary loss. On the other hand, Ward holds that even if a functional justification is identified, “good governance” concerns may militate against the award of Charter damages. If one cannot conclude that damages would properly compensate Khadr’s loss, Ward provides appropriate guidance, at para 53: “Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and may be inappropriate or unjust…” In other words, we should not throw good money after bad, even to vindicate Charter rights in an abstract sense. This does not mean  that the law should not compensate when it is difficult—private law is fundamentally about compensation in such circumstances. It simply means that, especially in the Khadr case with no pecuniary loss, compensation may be a weaker justification than the alternatives—especially when the law itself recognizes the limitations.

Deterrence is a more promising function in this particular case. Law and economics theory tells us that the goal of damages-as-deterrent seeks to affect the incentives of future defendants by forcing them to internalize the costs of their tortious actions. Opponents claim that deterrence theory requires defendants to be perfectly rational economic actors, and that the empirical evidence is weak to support such a claim. However, as Professor Norman Siebrasse essentially claims in one of a series of blog posts, perfection is not of this world.  Damages fail on the deterrence rationale only if a defendant is perfectly irrational. If a defendant has some regard to consequences, deterrence theory can provide an explanation and justification for damages, including Charter damages where the compensatory rationale is exceedingly weak. This is because the possibility of liability affects, in some regard, the choices presented to a defendant in a given circumstance.

On this argument, the Khadr settlement might be justified on a deterrence basis. While government actors may not be cost-conscious, they are creatures of politics. They seek to avoid Khadr-type news cycles which obsess over multi-million dollar awards. Government actors may avoid violation of constitutional norms simply because it is in their interest to do so, having regard to the settlement consequences. Awards based on deterrence, for example, might be likely in respect of discriminatory police conduct based on race. The recent Elmardy case at the Ontario Divisional Court demonstrates how the Ward analysis is used to affect the incentives of future governments on a deterrence rationale, especially given the newsworthy nature of such police misconduct (see also Gabriella Jamieson’s recent analysis of Ward in the context of race, and the importance of deterrence).

In short, whether the Khadr settlement is justified is a question of legal policy. Different theories of public law damages can provide different perspectives. As of now, however, no proponent of the settlement has engaged with deterrence theory in a fulsome way. In other words, simply reasoning from abstract principles of “human rights” does not justify Charter damages as a legal matter, and provides no answers as to the suitability of the Khadr settlement or Charter damages.

*****
The second point, on quantum, is one which admits of no easy answers. Yet most observers do not seem to question the Prime Minister’s assertion that the litigation of Khadr’s suit would have cost the government up to $40M. For at least two reasons, this is an impossible prediction to make or accept. Even if awarded, a damages award consisting of Charter damages might not have reached even $10.5M. I should note that I do not address liability in tort respecting quantum. While that is a relevant consideration, I am responding primarily to the commentators who have focused their analysis on the Charter breaches and damages flowing from same. Much of the uncertainty respecting Charter damages applies to the relationship between common law and constitutional damages, at any rate.

First, there is a paucity of Charter damages case law with which to analogize and compare the Khadr settlement in order to make these conclusions. Ward holds that quantum is governed in deterrence and vindication cases (such as Khadr) by a number of factors, including precedent and the seriousness of the breach: see paras 51-52. Since 2010, when Ward was decided, only a handful of cases have awarded Charter damages awards in the millions. Henry involved a case of wrongful imprisonment for a period of around 27 years. The BC Supreme Court awarded $7.5M in Charter damages, designed to vindicate Henry’s rights; an additional $530 000 was awarded for pecuniary loss. In BCTF v British Columbia, a trial court awarded $2M for bad-faith legislation—a rarity in constitutional remedies. Finally, in Conseil scolaire francophone de la Colombie-Brittanique v British Columbia, the BC Supreme Court awarded $6M in Charter damages for the underfunding of a minority education transportation system. The facts, quantum of damages, and justifications for the remedy in each of these cases diverge wildly—making it difficult to draw any legal conclusions or precedential value for the Khadr case.

Moreover, few Charter damages awards since Ward have come close to $10.5M, with most cases awarding nominal damages. This is true even of recent solitary confinement cases which might be analogized to Khadr. In Ogiamien, Justice Gray held that $85 000 would compensate for the losses of two plaintiffs who suffered under conditions which “outraged standards of decency.” In that case, the court found that the conditions violated protections against cruel and unusual punishment contained in s.12 of the Charter. If that amount of money satisfied the judge’s “outrage” in that case, it might very well satisfy any outrage in Khadr. This goes to the basic premise—compensation will be in the eye of the beholder, a trial judge. Reasonably, there is enough for a judge to conclude that $10.5M is not justified because of the limited breach.

This connects to the second point: because damages require an imaginative judiciary, and because there is little case law on the matter, much depends on how a trial judge would have analyzed the facts and the evidence respecting the “seriousness of the breach.” Michael Spratt argues that the breach was quite serious, given Khadr’s youth and circumstances. But Professor Macklin characterizes Khadr 2010, which found the breaches, as a “narrow” ruling, simply based on questioning and interrogation—no cruel and unusual punishment as in Ogiamien, torture, or otherwise (though, as noted above, Macklin supports the settlement). However a judge would resolve this debate will tell the tale. There is enough doubt, though, to question confident predictions of any “dwarfing”–and to support the opposite conclusion.

This is an unsatisfying conclusion. But there is no problem in stating what the law and the facts dictate: one cannot claim in any probabilistic sense that the damages award at trial would have “dwarfed” the settlement figure. There are simply too many variables to make that conclusion—there is at least some reasonable doubt.

*****

At the end of the day, while the Charter protects the fundamental rights of those like Khadr, that does not mean that a violation of a particular right leads inexorably to any particular remedy. It does not mean that compensation follows, or that it is justified from a legal policy perspective. Much nuance has been left out of the public comments on the Khadr settlement. Many have found it appropriate to simply say that a damages award, no matter the quantum, is justified because of the violation of Khadr’s rights. That may be a sound political argument. But the law requires more. It would be appropriate to see observers engage with the legal justifications for Charter damages rather than political justifications. Moreover, it would be helpful for analysts to recognize the limitations of the law in predicting the ceiling on an award of Charter damages. Engaging on those terms will improve the state of constitutional remedies and provide more convincing analysis.

 

 

Mancini on Khadr

Announcing a guest post by Mark Mancini on the Khadr Settlement

I am delighted to announce a forthcoming guest post by Mark Mancini on the Canadian government’s settlement with Omar Khadr. There have been many hyperbolic reactions to it, so I am very much looking forward to what I expect will be nuanced and thoughtful comments on an important issue that deserves more serious treatment than it has mostly received. Mr. Mancini is a recent graduate of UNB, already a published scholar, and a friend of this blog. I am delighted to welcome him as a contributor.